NUMBER 13-11-00690-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

JAMES GUY GARNER, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 329th District Court

of Wharton County, Texas.

 

MEMORANDUM OPINION

Before Justices Benavides, Vela, and Perkes 

Memorandum Opinion by Justice Perkes

Appellant, James Guy Garner, appeals his conviction for one count of continuous 

violence against the family, a third-degree felony, and two counts of abandoning a child 

without intent to return, a second-degree felony. See TEX. PENAL CODE ANN. §§ 22.041,

25.11 (West 2011). After appellant pleaded guilty to each count, the trial court held a 

bench trial on punishment and on each count, the trial court sentenced appellant to eight 
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years of confinement in the Texas Department of Criminal Justice, Institutional Division. 

The trial court ordered the three sentences to run concurrently. By his sole issue, 

appellant argues that his counsel provided ineffective assistance during the punishment 

phase of trial by not objecting to the admission of hearsay. We affirm. 

I. FACTUAL AND PROCEDURAL BACKGROUND

During the bench trial on punishment, the State presented testimony from five 

witnesses and appellant presented testimony from two witnesses. During the State’s 

examination of its first witness, Deputy Christopher French of the Wharton County 

Sheriff’s Department, the State elicited the following testimony: 

Q: Based on your investigation of that disturbance, what took place on 

that day?

A: Ms. Kubena advised me that she had been arguing with Mr. Garner 

and that Mr. Garner became violent and hit her and one of her 

children with a belt, threw herself, Ms. Kubena and two of her 

children outside the residence. And while they were outside, they 

didn’t have any—I believe they didn’t have any pajamas on.

Q: Okay. Going back to the belt.

A: Okay.

Q: Did he —did she —did your investigation indicate where he hit them 

with the belt?

A: I believe on the arms and around the neck, I believe it was.

. . . .

Q: Now you said a minute ago that the defendant had assaulted Ms. 

Kubena with a belt and that he had done the same to one of her

children and that he threw—I wasn’t clear on what happened after 

that. Would you go—

A: According to Ms. Kubena, he kicked her and two of her older sons 
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out of the residence and locked them out.

Q: And when you say “kicked,” do you mean literally or figuratively?

A: Well, Ms. Kubena did advise that her younger son of the two was 

kicked in the buttocks by Mr. Garner. But as far as being removed 

from the residence, he removed them from the residence and did not 

allow them back into the residence.

Appellant’s trial counsel did not object to any hearsay contained in Deputy 

French’s testimony. However, before the trial court heard any testimony, the State 

announced it would call the complainant, Amanda Kubena, as a witness. The record 

shows that Kubena testified to the same events Deputy French described in the 

above-quoted testimony and photographs of her injuries were admitted into evidence. In 

addition, Deputy James Molina of the Wharton County Sherriff’s Department described 

Kubena’s injuries based on the observations he made at the time he photographed the 

injuries.

II. DISCUSSION

In his sole issue, appellant contends that his trial counsel provided ineffective 

assistance because he failed to timely object to hearsay in the above-quoted portion of 

Deputy French’s testimony. We disagree. 

Both the United States and Texas Constitutions guarantee an accused the right to 

assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; see also TEX.

CODE CRIM. PROC. ANN. art. 1.051 (West 2010). This right necessarily includes the right 

to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 

686 (1984). In order to prove an ineffective assistance of counsel claim, a defendant 

must show (1) by a preponderance of the evidence, that counsel’s performance was so 
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deficient that he was not functioning as acceptable counsel under the Sixth Amendment,

and (2) there is a reasonable probability that, but for counsel’s error or omission, the result 

of the proceedings would have been different. Strickland, 466 U.S. at 687–96; 

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The defendant must 

overcome the strong presumption that the challenged action might have been sound trial 

strategy. Thompson, 9 S.W.3d at 813. We will not speculate to find trial counsel 

ineffective when the record is silent as to counsel’s reasoning or strategy. Godoy v. 

State, 122 S.W.3d 315, 322 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). 

When, as in this case, there is no evidentiary record developed at a hearing on a 

motion for new trial, it is extremely difficult to show that trial counsel's performance was 

deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); see also

Aldaba v. State, No. 14-08-00417-CR, 2009 WL 1057685, at *5 (Tex. App.—Houston 

[14th Dist.] April 16, 2009, pet. ref’d). If there is no hearing, or if counsel does not appear 

at the hearing, an affidavit from trial counsel becomes almost vital to the success of an 

ineffective-assistance claim. Stults v. State, 23 S.W.3d 198, 208–09 (Tex. 

App.—Houston [14th Dist.] 2000, pet. ref’d). The Texas Court of Criminal Appeals has 

stated that it should be a rare case in which an appellate court finds ineffective assistance 

on a record that is silent as to counsel’s trial strategy. See Andrews v. State, 159 S.W.3d 

98, 103 (Tex. Crim. App. 2005). On a silent record, this Court can find ineffective 

assistance of counsel only if the challenged conduct was so outrageous that no 

competent attorney would have engaged in it. Goodspeed v. State, 187 S.W.3d 390, 

392 (Tex. Crim. App. 2005).
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Appellant’s ineffective assistance claim fails because he did not meet his burden 

under either prong of the Strickland test. The record does not show that appellant’s 

counsel’s performance was so deficient that he was not functioning as acceptable 

counsel under the Sixth Amendment. Appellant did not file a motion for new trial or 

object to the alleged ineffective assistance of counsel in the trial court, and he brings 

forward no evidence of what counsel’s trial strategy may have been. This was a bench 

trial and counsel may have reasoned that it would have been disadvantageous to raise a 

hearsay objection when the State’s questioning did not necessarily call for a hearsay 

response and the complainant was going to testify regarding the same events. Trial 

counsel may have also reasoned that to object would risk losing credibility with the trial 

court by appearing to unnecessarily obstruct the State’s presentation of its case.

With respect to the second Strickland prong, appellant fails to point to any 

evidence in the record that shows a reasonable probability that his punishment would 

have been decided differently if counsel had made hearsay objections to Deputy French’s 

testimony. See Thompson, 9 S.W.3d at 812. Instead, appellant argues that this Court 

should find he was prejudiced because the testimony was repetitious of other evidence 

and “[t]his certainly affected the court’s decision to impose an eight-year sentence instead 

of a lower sentence.” Appellant adds, “[a]lthough eight years is not at the highest end of 

the potential range, eight years is still overly severe.” 

We disagree that the record shows prejudice. Deputy French’s testimony in 

question spans only a small portion of the record. The reporter’s record includes nearly 

one hundred pages of testimony. Kubena’s and Deputy Molina’s testimony and the 
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photographs were admissible and presented the same facts to the trial court more vividly 

and in greater detail. On this record, we cannot conclude appellant has met his burden 

to demonstrate a reasonable probability that but for counsel’s alleged error, the outcome 

of his trial would have been different. See id. Appellant’s sole issue on appeal is 

overruled.

III. CONCLUSION

We affirm the trial court’s judgment. 

Gregory T. Perkes

Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 

2nd day of August, 2012.